Development Agreement with Housing Authority of CMB • oiele y ,?
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This instrument was prepared by (record and return to)
Name: Raul Aguila, Deputy City Attorney
Address: Office of the City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139 (Space reserved for Clerk)
EXECUTION COPY
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the Agreement) is made and entered
into as of the Lay of $lNiC/ 2011, by and between the CITY OF MIAMI BEACH, a
Florida municipal corporation (the City), and the HOUSING AUTHORITY OF THE
CITY OF MIAMI BEACH, a Florida public housing authority (the Owner or HACMB).
The Commencement Date of this Agreement is the date of approval by the City
Commission of the City of Miami Beach, or September 15, 2010.
Introduction and Background
A. The property that is the subject of this Agreement lies in Miami Beach,
Miami -Dade County, Florida. This Agreement, among other things, is intended to and
shall constitute a development agreement among the parties pursuant to the Florida Local
Government Development Agreement Act (the Act).
B. The Owner owns certain real property in the City of Miami Beach,
located at 1231 -1251 17 Street, and as more specifically delineated as Parcels A, B, and
C in the sketch attached as Exhibit "A" hereto (Parcels A, B, and C may hereinafter
collectively be referred to as the HACMB Property or the Property).
C. The Owner intends to develop Parcel C as an affordable elderly housing
development with some ground level, neighborhood- oriented commercial space (the
HACMB Project).
D. In order to connect Dade Boulevard and West Avenue, and thereby
relieve some of the congestion caused by traffic in the surrounding area, the City is
desirous of constructing a public street for pedestrian and vehicular access, which street
would include a bridge, over Parcels A and B (the West Avenue Bridge Project).
E. In order to proceed with the West Avenue Bridge Project, Owner has
agreed to grant to City, and City has agreed to purchase from Owner, a perpetual
easement on and over Parcels A and B (the City Easement).
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F. As further consideration for Owner granting the City Easement to City, the
City and Owner have hereby agreed to certain other terms and conditions, pertaining to
the HACMB Project as set forth in this Agreement. Owner and City have entered into
and executed a purchase and sale agreement for the City Easement, which agreement was
approved by Owner on June 22, 2010, pursuant to HACMB Resolution No. 2010 -14, and
by the City on September 15, 2010, pursuant to City Resolution No. 2010- 27451; and
which agreement is attached and incorporated as Exhibit "B" hereto (hereinafter, the
"Purchase and Sale Contract").
G. The City is a Florida municipal corporation with powers and authority
conferred under the Florida Constitution, the Municipal Home Rule Powers Act, Florida
Statutes, and the Miami Beach City Charter and Code. The City has all governmental,
corporate, and proprietary powers to enable it to conduct municipal government, perform
municipal and governmental functions and render municipal services, including the
authority to adopt, implement and enforce (together with any required governmental
approvals) comprehensive plans, zoning ordinances, redevelopment plans, and other
police power and legislative measures necessary to assure the health, safety and general
welfare of the City and its residents and visitors.
H. Owner is a public housing authority organized and created pursuant to the
Housing Authorities Law of the Florida Statutes.
I. Having fully considered this Agreement at two (2) duly noticed public
hearings, in compliance with Section 163.3225 of the Act; and having further determined
that it is in the City and Owner's best interest, as well as the public's interest, to deal
with the issues covered by this Agreement in a comprehensive manner, in compliance
with all applicable laws, ordinances, plans, rules and regulations of the City, while
allowing the City and Owner to proceed, respectively, with the development of the West
Avenue Bridge Project and the HACMB Project in accordance with existing laws and
policies, subject to the terms hereof, the parties have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
1. Recitations. The foregoing recitations are true and correct and are
incorporated herein by this reference.
2. Authority. This Agreement is entered into pursuant to the authority and
procedures provided by the Act.
3. Definitions. All capitalized terms in this Agreement shall have the
definitions set forth in this Section unless such terms are defined elsewhere in the body of
this Agreement.
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3.1 "Act" shall mean the Florida Local Government Development
Agreement Act (Section 163.3220, et. seq., Florida Statutes (1997)).
3.2 "Building Permit" means a "Full Building Permit," as such term is
defined in the City's land development regulations, issued by the City's Building
Department, which allows building or structures to be erected, constructed,
altered, moved, converted extended, enlarged, or used, for any purpose, in
conformity with applicable codes and ordinance.
3.3 Intentionally omitted.
3.4 "City Easement" shall mean a perpetual easement for the West
Avenue Bridge Project, which shall provide, without limitation for the design,
development, construction, operation, maintenance, repair, renovation, and
improvement of a public street, including a bridge, for vehicular and pedestrian
access, on, over and across the City Easement Area (as hereinafter defined); and
which Easement shall be substantially in accordance with the form attached as
Exhibit "C" hereto.
3.5 "City Easement Area" shall mean all of the area of Parcels A and
B, as more specifically described in Attachment "A" of the City Easement.
3.6 Intentionally omitted.
3.7 "Comprehensive Plan" shall mean the comprehensive plan which
the City has adopted and implemented for the redevelopment and continuing
development of the City pursuant to Chapter 163 Part II, of the Florida Statutes.
3.8 "Development Approvals" shall mean all Development Permits
and all approvals, consents, permits, special use exemptions or variances, as well
as other official actions of the federal, state or County governments or other
governmental agencies.
3.9 "Development Permits" shall mean any building permit (including,
without limitation, a Full Building Permit), zoning permit, subdivision approval,
zoning certification, special exceptions, variances issued or granted by the City or
any other official actions of the City (whether by the City Commission or any
City board, department or agency) having the effect of permitting the
development of the HACMB Project.
3.10 Intentionally omitted.
3.11 "HACMB Project" shall mean the design, development,
construction, operation, maintenance, repair, renovation, and improvement by
Owner of that certain affordable elderly housing project, with some ground level,
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neighborhood- oriented commercial space, to be situated on and over Parcel C,
subject to and in compliance with the following conditions:
(a) the maximum total square footage of floor area permitted upon
Parcel C shall not exceed 81153.60 square feet (subject to Survey verification),
measured in accordance with the requirements of the City's land development
regulations.
(b) For purposes of the computation of the maximum floor area of
Parcel C, as set forth in subsection (a) hereof, Owner may include the City
Easement in the calculation of the square footage of Parcel C. The provisions of
this subsection (b) shall survive expiration of this Agreement.
(c) Upon approval of this Agreement and execution by the parties
hereto, and as a condition of Closing, Owner shall execute and deliver, for review
and approval by the City's Planning Director, a covenant, or covenant in lieu of
unity of title (as determined by the City's Planning Director), for the Property.
The provisions of this subsection (c) shall survive expiration of this Agreement.
(d) The Project shall be designed, developed, and constructed, at the
sole cost and expense of Owner, as an affordable housing development. Provided
that Owner obtains all requested Development Approvals to do so the Project
shall be designed and proposed to be constructed substantially in accordance with
the proposed concept plan prepared by Owner's architect, Ari Sklar, and attached
as Exhibit "D" hereto (the Concept Plan). Upon execution of this Agreement by
the parties hereto, the City Commission shall be deemed to have approved the
attached Concept Plan.
(e) The parties agree and acknowledge that the setbacks in the Project,
as proposed in the approved Concept Plan, may require the issuance of a
variance(s) by the City's Board of Adjustment; which variance, if required, shall
be supported for approval by the City Administration, but subject to final
approval by the Board of Adjustment, acting in its governmental capacity, in
accordance with the provisions of Section 9.4 hereof.
(f) Any material deviation (as determined by the City's Planning
Director) in any of the conditions described in subsection(s) (a) — (e) above, or in
the approved Concept Plan, shall require the approval of the City Commission
and a written amendment to this Agreement;
(g) Any non - material changes (as determined by the City's Planning
Director) which are required by any City land use board (including, without
limitation, the Design Review Board, the Historic Preservation Board, the Board
of Adjustment, and the Planning Board, as applicable), or any other applicable
board, agency, or authority, or any non - material changes which are initiated by
Owner, shall not require the approval of the City Commission.
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(h) Any technical changes in the approved Concept Plan not governed by
subsections (f) and (g) above, and which are (i) required in order for the HACMB
Project to be in compliance with any and all applicable laws, codes, rules and
regulations of any governmental - or regulatory - agencies including, - without- - -
limitation, the Florida Building Code and the Americans with Disabilities Act _
(ADA), or (ii) otherwise required or necessary including, without limitation, any
changes in connection with ingress and egress and public works, shall be
delegated to the appropriate government official of the City for review and
approval of such technical changes.
3.12 "HACMB Property (or the "Property ") shall mean the parcel of
real property described in Exhibit "A" hereto; provided, however, that from and after the
Closing, the Property shall include all of the City's right, title, and interest in and to the
City Easement.
3.13 "Closing" shall mean the closing for the purchase and sale of the
City Easement, pursuant and subject to the terms of the Purchase and Sale Contract, and
as also provided in Section 11.1 of this Agreement.
3.14 "Purchase and Sale Contract" shall mean the agreement approved
by and entered into between City and Owner for purchase and sale of the City Easement.
3.15 Intentionally omitted.
3.16 Intentionally omitted.
3.17 Intentionally omitted.
3.18 Intentionally omitted.
3.19 Intentionally omitted.
4. City Easement. The City Easement shall be granted by the Owner to the
City at the Closing and shall be substantially in accordance with the form attached as
Exhibit "C" hereto. Said grant shall not be affected by the expiration, termination or other
treatment of this Agreement and shall be deemed a perpetual easement in accordance
with the terms of said instrument.
5. Intentionally omitted.
6. Intentionally omitted.
7. Intentionally omitted.
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8. West Avenue Bridge Project. Subject to and contingent upon Closing and
the grant of the City Easement, the City shall design, develop, and construct, at its sole
cost and expense, the West Avenue Bridge Project, subject to and in compliance with the
following conditions:
(a) City shall direct the design, development, and construction
process; be responsible for entering into all contracts necessary for the
design, development, and construction of the Project; secure all required
permits and approvals for the Project; and shall have any and all other sole
authority, as City deems necessary in its sole and reasonable judgment and
discretion, to direct the means, manner, and method of the design,
development, and construction process.
(b) The Project shall provide for, contain, and/or otherwise
comply with those specific requirements, as set forth in Exhibit "E,"
attached and incorporated hereto.
9. Zoning and Other Approvals for HACMB Project.
9.1 Development Permits. Certain provisions of this Agreement will
require that the City and/or its boards, departments, or agencies take certain
governmental actions, acting in their governmental capacity, and issue
Development Permits in order to accomplish and satisfy the authorization and
construction of the HACMB Project:
9.2 Applications for Development Approvals. Promptly following the
Commencement Date, the Owner will initiate and diligently pursue all
Development Approval applications for the HACMB Project. The City shall
process all Development Permit applications in a timely fashion and the City shall
cooperate with the Owner (at no cost to the City) in processing all necessary
Development Approvals from federal, State, and County agencies, as needed. No
extension of any time period herein shall be deemed to be an extension of any
time periods contained within the Development Approvals.
9.3 Laws Governing this Agreement. The City's laws and policies
governing the development of the HACMB Project at the time of the execution of
this Agreement by the parties hereto shall govern the development of the Project
for the duration of this Agreement. The City may apply subsequently adopted
laws and policies to the HACMB Project only as otherwise permitted or required
by the Act. Except as required by Chapter 163, Florida Statutes, the HACMB
Project may proceed for the life of this Development Agreement and is vested as
to the rights provided herein. Additionally, the HACMB may modify the
HACMB Project based upon future (i.e. subsequent to the Commencement Date)
beneficial changes in the City Code.
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9.4 Comprehensive Plan, Zoning and Other Approvals. As provided
above, the parties recognize and agree that certain provisions of this Agreement
will require the City and/or its boards, departments, or agencies, acting in their
governmental capacity, to consider governmental actions, as set forth in this
Agreement. All such considerations and actions shall be undertaken in accordance
with established requirements of State statutes and City - ordinances, in the
exercise of the City's jurisdiction under the police power. The parties further
recognize and agree that these proceedings shall be conducted openly, fully,
freely and fairly, in full accordance with law and with both procedural and
substantive due process to be accorded the applicant and any member of the
public. Nothing contained in this Agreement shall entitle the Owner to compel the
City to take any such actions, save and except the consents, if applicable, to the
filing of such applications for Development Permits or other required
Development Approvals, as more fully set forth herein, and to timely process such
applications.
9.5 Owner shall be solely responsible for obtaining all Development
Approvals and Development Permits for the Project.
9.6 Owner shall, at its sole cost and expense, commence construction
on or before 120 days of obtaining all Development Approvals and Development
Permits necessary for the HACMB Project are issued (the Construction
Commencement Date). For purposes of this Agreement, "commencement of
construction" means the commencement of major work (such as piling or
foundations) for construction of the Project. Any and all preliminary site work
(including, without limitation, any environmental remediation and ancillary
demolition) shall not be deemed to be commencement of construction.
9.7 Owner shall, at its sole cost and expense, prosecute construction of
the Project with diligence and continuity to completion. Completion of the
Project, as evidenced by the issuance of a Certificate of Completion (C.C.) or
Certificate of Occupancy (C.O.), as applicable, for the Project, shall occur no later
than the date that is five (5) years after the Commencement Date (the Completion
Deadline).
10. Owner's Right of Termination Prior to Commencement of Construction.
Notwithstanding anything to the contrary contained herein, Owner shall have the
right to be released from its liability and obligations (except, the obligation to grant and
convey the City Easement to City), and to terminate this Agreement by providing written
notice to the City prior to the Construction Commencement Date because:
(a) changes to the Project required as a condition to the issuance of
any Development Approval or Development Permit render the Project economically
unfeasible in the reasonable business judgment of Owner; or
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(b) the Project cannot meet concurrency requirements under section
163.3180, Florida Statutes, or the costs of concurrency mitigation are, in the reasonable
business judgment of Owner, economically unfeasible; or
(c) Owner, after good faith efforts, has been unable _ to obtain a Full
Building Permit for the Project.
(d) Owner lacks funding to do the HACMB Project;
(e) the HACMB Project, as contemplated by HACMB, does not, or
cannot, comply and/or meet with, and/or does not, or cannot, otherwise receive all
or any portion of the required approvals (including, without limitation, any
conditions and or requirements imposed upon the Project by Federal, State, or
County funding sources) or permits; or
(f) opposition to the HACMB Project by the surrounding
neighborhood and, in particular, the immediate surrounding residential area in
and around the proposed site of the Project; or
(g) the HACMB decides to sell the property to a third party. In such
event, and provided that the Closing occurs, HACMB shall still be required to
grant and convey the City Easement to City, but it is the intent of the parties that
the Floor Area Ratio of Parcels A and B could be utilized by any subsequent
purchaser of Parcel C; or
(h) the HACMB Project, as contemplated by HACMB, exceeds the
Project budget acceptable to HACMB.
In the event of termination of this Agreement pursuant to this Section 10, each party shall
bear its own costs and expenses incurred in connection with this Agreement, and neither
party shall have any further liability to the other (except, provided the Closing occurs,
HACMB shall be obligated to grant and convey the City Easement to City; which
obligation shall survive termination of this Agreement).
11. Conditions to Closing.
11.1 Notwithstanding anything to the contrary contained herein if,
during its due diligence review of the West Avenue Bridge Project (the Due Diligence
Period), the City determines that it would not be in the City's best interest to proceed
with the Project due to any or all of the following conditions:
a.) lack of funding;
b.) the Project, as contemplated by City, exceeds the Project
budget acceptable to City;
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c.) the Project, as contemplated by City, - does not, -or cannot, -
comply and/or meet with, and/or does not, or cannot, otherwise receive all or any
portion of the required approvals (including, without limitation, any conditions
and or requirements imposed upon the Project by Federal, State, or County
funding sources) or permits; or - _-
d.) opposition to the Project by the surrounding neighborhood
and, in particular, the immediate surrounding residential area in and around the
proposed site of the Project; or
e.) any or all of the conditions precedent to Closing, as set
forth in the Purchase and Sale Contract, are not satisfied; or
f.) notwithstanding subsection (e) above, the Purchase and
Sale Contract is terminated or otherwise declared null and void, in accordance
with provisions thereof;
Then the City may elect not to proceed with the Closing and to terminate
this Agreement by providing written notice to Owner, prior to the conclusion of the Due
Diligence Period (as set forth below), and neither party shall have any further rights or
obligations under the Agreement; provided , however, that to the extent that applications
of Owner seeking any Development Approvals for the HACMB Project are still pending
hearing (or appeal) as of the date of termination of this Agreement, then at Owner's
option, the Agreement may be extended for an additional six (6) month period; provided
further Owner has given City written notice of same within thirty (30) calendar days from
the initial date of termination. Notwithstanding the preceding, in the event that Owner
elects the option to extend the Agreement, and timely notifies the City of such election
(as provided above), and whether or not Owner has obtained all of the Development
Approvals, for the Project, then this Agreement shall automatically terminate at the end
of the extension period, and the parties shall have no further obligations under this
Agreement.
The City's Due Diligence Period shall be the period of time referred to as the
"Inspection Period" in the Purchase and Sale Contract. The Inspection Period is one
year from the Commencement Date; to wit September 15, 2011.
12. Title; No Subordination. At the Closing, Owner shall grant the City
Easement, free and clear of all liens, encumbrances, rights of occupancy, or other matters.
Thereafter, the City Easement including, without limitation, all or any portion of
Parcels A or B, shall not be subject or subordinate to (a) any mortgage, whether now or
hereafter existing; or (b) any other liens or encumbrances hereafter affecting the Property
and/or the HACMB Project.
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13. "As Is" Condition. Subject to Closing, the City agrees to accept the City
Easement, Area, with the underlying land and improvements (if any), in "AS - IS"
condition.
14. Affordability Period; Restrictive Covenants Amendment to City's Land
Development Regulations.
14.1 Affordability Period; Restrictive Covenant. Owner expressly
agrees and covenants that the HACMB Project shall be operated as an
affordable housing project for a minimum of thirty (30) years, which
period shall commence upon the issuance of a Certificate of Completion
(C.C.) or Certificate of Occupancy (C.O.), as applicable, for the Project
(the Affordability Period). Prior to, and as a condition to the issuance of a
C.C. or C.O. for the Project, Owner shall execute and deliver a Restrictive
Covenant to City, substantially in accordance with the form attached as
Exhibit "F" hereto, and which Covenant shall memorialize the
Affordability Requirement; be intended and deemed to be a covenant
running with the land; inure to the benefit of, and be binding upon, the
parties' respective successors and assigns including, without limitation,
subsequent owners of the Property and/or the Project; and be recorded in
the public records in Miami -Dade County, Florida.
Notwithstanding the preceding paragraph, if Owner sells, assigns, or
otherwise transfers Parcel C and/or the Property prior to the issuance of a
Building Permit for the HACMB Project, then the following conditions
shall apply:
a) If Parcel C and/or the Property is sold, assigned, or
otherwise transferred to an individual /entity who /which intends to
develop Parcel C as an affordable housing project, then Owner
shall require such buyer /assignee /transferee (as applicable), as a
condition of such sale, assignment, or transfer, to execute and
record a Restrictive Covenant against the Property (substantially
accordance with the form attached in Exhibit "F" hereto), requiring
that the development on Parcel C be operated and maintained as an
affordable housing throughout the Affordability Period; or
b) If Parcel C and/or the Property is sold, assigned, or
otherwise transferred to an individual /entity who /which intends to
develop Parcel C for a main use other than an affordable housing
project, then no Affordability Period or Restrictive Covenant shall
be required.
Notwithstanding the preceding, the requirement to grant the City
Easement shall not be affected by any sale, assignment, or other
transfer of the Property, or any portion thereof. Additionally, the
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floor area ratio (FAR) of the City Easement Area, as identified
herein as Parcels A and B, shall be utilized for the benefit of Parcel
C. The FAR of Parcels A and B shall be utilized for the benefit of
the owners of Parcel C.
As consideration for Owner's agreement to execute, record, and deliver the
Restrictive Covenant, as provided above, the City agrees to waive any Payment in Lieu of
Taxes (PILOT) fees for the HACMB Project for such time as the Project is operated and
maintained as an affordable housing project, up to a period of fifteen (15) years,
commencing upon the issuance of a Certificate of Completion (C.C.) or Certificate of
Occupancy (C.O.) for the Project; provided further, that in the event that the (i) HACMB
Project does not require a variance (as contemplated in subsection 3.11(e) hereof); and
(ii) A) either the City Commission does not amend the City's land development
regulations (LDR's) by June 1, 2011 (as contemplated in Section 14.2 below) or, B) the
City's Planning Director determines that the Project does not require any amendments to
the LDR's, then the City agrees that the PILOT fee waiver period shall be automatically
extended (without any further action required by either party) from the original fifteen
(15) years, to a maximum of twenty -five (25) years (which new 25 year period will also
be deemed to have commenced upon the issuance of a C.C. or C.O. for the Project).
14.2 Amendment to City's Land Development Regulations. The City
Administration will prepare and present to the Mayor and City
Commission, for its consideration at one of the Commission's regularly
scheduled meetings, certain amendments to the City's land development
regulations, relating to modifying minimum average unit size and parking
requirements (including, without limitation, commercial, guest, and unit
parking requirements) for affordable housing developments in the City of
Miami Beach; which amendments, if approved, shall apply to the
HACMB Project. Notwithstanding the preceding, Owner acknowledges
that, the City shall not be obligated to approve any or all such
amendments, whether as a condition of this Agreement or otherwise, and
that any or all such approval(s) shall be at the Mayor and City
Commission's sole discretion and judgment.
14.3 Notwithstanding subsections 14.1 and 14.2 hereof, in the event that
the City elects not to proceed with the Closing and to terminate this
Agreement on or before the Due Diligence Period, as provided in
subsection 11.1 hereof, and provided further that the HACMB has
submitted its application for a variance (in the event that the City's
Planning and Zoning Director has previously deemed that the Project will
require a variance) prior to receipt of the City's termination notice then, as
consideration therefore, City agrees, and HACMB shall be entitled to, the
PILOT fee waiver for the Project for the maximum twenty five (25) year
period; commencing with the issuance of a Certificate of Completion
(C.C.) or Certificate of Occupancy (C.O.) for such Project. The City's
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obligation to waive the PILOT fees for Seller's project, as provided in this -
Section 14.3, shall survive termination of this Agreement.
15. Reservation of Rights. This Agreement shall not affect any rights which
may have accrued to any party to this Agreement under all applicable law and each party
hereto reserves any and all such rights.
16. No Permit or Waiver of Fees. This Agreement is not and shall not be
construed as a Development Permit, Development Approval, or authorization to
commence development of the HACMB Project, nor shall it relieve Owner of the
obligation to obtain all necessary Development Approvals, Development Permits, or any
other approvals and/ or permits that are required under applicable law and under and
pursuant to the terms of this Agreement. Except as otherwise expressly provided herein,
nothing contained in this Agreement shall be deemed to constitute a waiver of any fee,
charge, or cost imposed by the City in connection with the issuance of any Development
Approval, Development Permit or any other approval and/or permit.
17. Good Faith; Further Assurances; No Cost. The parties to this Agreement
have negotiated in good faith. It is the intent and agreement of the parties that they shall
cooperate with each other in good faith to effectuate the purposes and intent of, and to
satisfy their obligations under, this Agreement in order to secure to themselves the mutual
benefits created under this Agreement; and, in that regard, the parties shall execute such
further documents as may be reasonably necessary to effectuate the provisions of this
Agreement; provided, that the foregoing shall in no way be deemed to inhibit, restrict or
require the exercise of the City's police power or actions of the City when acting in a
quasi - judicial capacity. Wherever in this Agreement a provision requires cooperation,
good faith or similar effort to be undertaken at no cost to a party, the concept of no cost
shall not be deemed to include any cost of review (whether legal or otherwise),
attendance at meetings, hearings or proceedings and comment and/or execution of
documents, all such costs to be borne by the party receiving a request to so cooperation,
act, in good faith or so forth.
18. Consistency with the City's Master Plan. The City has adopted and
implemented the Comprehensive Plan. The City hereby finds and declares that the
provisions of this Agreement dealing with the HACMB Project are, or shall be, consistent
with the City's adopted Comprehensive Plan and land development regulations (subject to
all applicable Development Approvals).
19. Public Facilities and Concurrency. City and Owner anticipate the
HACMB Project will be served by those roadway transportation facilities currently in
existence as provided by state, County and local roadways. It is also anticipated that the
Project will be served by public transportation facilities currently in existence, including
those provided in Miami -Dade County, the City , and other governmental entities and
may presently operate public transportation services within the City sanitary sewer, solid
waste, drainage, and potable water services for the proposed Project are expected to be
those services currently in existence and owned or operated by Miami -Dade County, the
Miami Dade County Water and Sewer Department, and the City. The Project will also be
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serviced by any and all public facilities, as such are defined in Section 163.3221(12), _
Florida Statutes (1997), as such are described in the City's Comprehensive Plan. The
foregoing, however, shall not be deemed to be an approval of, nor shall it be deemed to
relieve Owner of the obligation to comply with Section 163.3180, Florida Statues (1997).
(b) Owner shall be solely responsible for obtaining all final non - appealable
land use permits, including, but not limited to, all permits and approvals required
pursuant to Section 163.3180, Florida Statutes (1997), with respect to concurrency
requirements for roads, sanitary sewer, solid waste, drainage, potable water, parks and
recreation (the Concurrency Requirements). Owner shall apply to the appropriate
governmental authorities for letter or other evidence that Owner is pursuing all applicable
Concurrency Requirements, and shall diligently and in good faith pursue such letters or
other evidence that the HACMB Project meets all applicable Concurrency Requirements.
20. Recording of Development Agreement. Within fourteen (14) days after
the parties execute this Agreement, the City shall record this Development Agreement
with the Clerk of the Circuit Court of Miami -Dade County. The Owner shall submit a
copy of the recorded Agreement to the State of Florida's Land Planning Agency within
fourteen (14) days after this Agreement is recorded. This Agreement shall become
effective only after (i) it has been recorded in the Public Records of Miami -Dade County,
and (ii) thirty (30) days have elapsed after the State of Florida Land Planning Agency's
receipt of a copy of the recorded Agreement. Owner agrees that it shall be responsible
for all recording fees and other related fees and costs related to the recording and delivery
of this Agreement. The provisions hereof shall remain in full force and affect during the
term hereto, and subject to the conditions of this Agreement, shall be binding upon the
undersigned and all successors in interest to the parties to this Agreement. Whenever an
extension of any material deadline is permitted or provided for under the terms of this
Agreement, at the request of either party, the other party shall join in a short-form
recordable Memorandum of Agreement confirming such extension to be recorded in the
Public Records of Miami -Dade County.
21. Duration of Development Agreement. The duration of this Agreement shall
not exceed fifteen (15) years from the Commencement Date; provided, however, that the
duration of this Agreement may be extended by mutual agreement of the City and Owner.
During the term of this Agreement, the City's laws and policies governing the
development of land in effect as of the date hereof shall govem development of the
Property. The City may apply subsequently adopted laws and policies to the HACMB
Project only if the City has held a public hearing pursuant to Section 163.3 225, Florida
Statutes, and determined:
(a) they are not in conflict with the laws and policies governing this
Agreement and do not prevent development of the land uses, intensities, or densities in
this Agreement; or
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(b) they are essential to- the public health, safety, or welfare, and
expressly state that they shall apply to a development that is subject to a development
agreement; or
(c) they are specifically anticipated and provided for in this
Agreement; or – — -
(d) the City demonstrates that substantial changes have occurred in
pertinent conditions existing a the time of approval of Agreement; or
(e) this Agreement is based on substantially inaccurate information
supplied by Owner.
22. Required Development Approvals.
(a) Developer shall be solely responsible for obtaining, at its sole cost
and expense, the Development Approvals listed in Exhibit "G" attached hereto.
Notwithstanding the preceding, the City and Owner agree and acknowledge that
the Development Approvals listed in Exhibit "G" hereto may not constitute a full
listing and description of all local development approvals or permits needed to be
approved for development of the HACMB Project, and that the omission of any
other approval or permit (required for the development of the Project) from
Exhibit "G" shall not relieve Owner of its sole obligation, whether under
applicable law or this Agreement, to obtain same.
23. Intentionally omitted.
24. Public Reservations and/or Dedications. There are no reservations and/or
dedications of land for public purposes that are proposed under this Agreement other than
the City Easement.
25. Confirmation of Land Development Regulations. The zoning district
classification of Parcel C is CD -2 (Commercial Medium Intensity), as defined in City's
land development regulations.
26. Omissions. The parties hereto recognize and agree that the failure of this
Agreement to address a particular permit, condition, term, or restriction shall not relieve
the Owner of the necessity of complying with the law governing said permitting
requirements, conditions, term, or restriction notwithstanding any such omission.
27. Notices. Any notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given if delivered by
hand, sent by recognized overnight courier (such as Federal Express) or mailed by
certified or registered mail, return receipt requested, in a postage prepaid envelope, and
addressed as follows:
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I -
If to the City at: City of Miami Beach, City Hall
1700 Convention Center Drive _
Miami Beach, Florida 33139
Attn: City Manager
- - -or
If to Owner at: Housing Authority of the
City of Miami Beach
200 Alton Road
Miami Beach, Florida 33139
Attn: Executive Director
28. Indemnification of Owner. Owner hereby agrees to hold the City, its
officers, employees, agents, contractors, and representatives harmless from any
liability /or damage or claims for damage for personal injury, including wrongful death,
and claims for property damage, which may arise from the direct or indirect activities
and/or operations of Owner, or these of any officer, employee, agent, contractor, sub-
contractor, or other person acting on Owner's behalf, which relate to the design,
development, and construction of the HACMB Project. Owner agrees to, and shall afford
at its sole cost and expense, the City and its officers, employees, agents, contractors, and
representatives from any and all actions for damages caused, or alleged to have been
caused, by reason of Owner's activities in connection with HACMB Project. This
indemnification agreement applies to all damages and claims for damages including,
without limitation, interest, costs and attorney's fees, outlined or alleged to have been
suffered by reason of the activities and/or operations referenced herein. This
indemnification shall not apply to the gross negligence or willful misconduct of the City,
or of its officer's employees, agents, contractors, or representatives. The aforestated
indemnification, and the provisions of this Section 28, shall survive expiration of this
Agreement.
29. Events Of Default, Conditional Limitations, Remedies, Etc.
Section 29.1 Definition. Each of the following events shall be an "Event of
Default" hereunder:
(a) if Owner shall default in the observance or performance of any
term, covenant or condition of this Agreement on Owner's part to be observed or
performed and, if no cure period is expressly provided for herein, Owner does not
remedy such Default within thirty (30) days after notice by City of such Default
(the "Default Notice "), or if such a Default is of such a nature that it cannot
reasonably be remedied within thirty (30) days (but is otherwise susceptible to
cure), and if, Owner does not (i) within thirty (30) days after the giving of such
Default Notice, advise City of Owner's intention to institute all steps necessary
(and from time to time, as reasonably requested by City, Owner shall advise City
of the steps being taken) to remedy such default (which such steps shall be
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■
reasonably designed to effectuate the cure of such Default in a professional --
manner), and (ii) thereafter diligently prosecute to completion all such steps
necessary to remedy the same; or
(b) if Owner makes an assignment for the benefit of creditors; or
(c) if Owner files a voluntary petition under Title 11 of the United
States Bankruptcy Code, or if Owner files a petition or an answer seeking,
consenting to or acquiescing in, any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or any
future Federal bankruptcy code or any other present or future applicable Federal,
state or other bankruptcy or insolvency statute or law, or seeks, consents to,
acquiesces in or suffers the appointment of any trustee, receiver, custodian,
assignee, sequestrator, liquidator or other similar official of Owner, of all or any
substantial part of its properties, or of all or any part of Owner's interest in the
Property and/or the HACMB Project, and the foregoing are not stayed or
dismissed within one hundred fifty (150) days after such filing or other action; or
(d) if, within one hundred fifty (150) days after the commencement of
a proceeding against Owner seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future Federal bankruptcy code or any other present or future
applicable Federal, state or other bankruptcy or insolvency statute or law, such
proceeding has not been dismissed, or if, within one hundred eighty (180) days
after the appointment, without the consent or acquiescence of Owner, of any
trustee, receiver, custodian, assignee, sequestrator, liquidator or other similar
official of Owner, of all or any substantial part of its properties, or of all or any
part of Owner's interest in the Property and/or the HACMB Project, such
appointment has not been vacated or stayed on appeal or otherwise, or if, within
one hundred eighty (180) days after the expiration of any such stay, such
appointment has not been vacated.
In the event of a Default which with the giving of notice to Owner and the
passage of time would constitute an Event of Default, City's notice to Owner shall state
with specificity the provision of this Agreement under which the Default is claimed, the
nature and character of such Default, the facts giving rise to such Default, the date by
which such Default must be cured pursuant to this Agreement, and, if applicable, that the
failure of Developer to cure such Default by the date set forth in such notice will result in
City having the right to terminate this Agreement.
Notwithstanding the foregoing, no Event of Default shall be deemed to have
occurred until such time as City shall have given Owner notice of the occurrence of an
Event of Default.
Notwithstanding anything to the contrary contained herein, City shall be entitled
to seek any injunctive or other equitable relief that may be available to City during the
pendency of any Default.
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29.2 Enforcement of Performance; Damages and Termination.
If an Event of Default occurs, City may elect to (a) enforce performance or
observance by Owner of the applicable provisions of this Agreement,- or (b) recover
damages for breach of this Agreement '
g s Agre went or terminate this Agreement. City's election of a
remedy hereunder with respect to an Event of Default shall not limit or otherwise affect
City's right to elect any of the remedies available to City hereunder with respect to any
other Event of Default.
29.3 Strict Performance.
No failure by City or Owner to insist upon strict performance of any covenant,
agreement, term or condition of this Agreement or to exercise any right or remedy
available to such party by reason of the other party's default or an Event of Default, shall
constitute a waiver of any such Default or Event of Default or of such covenant,
agreement, term or condition or of any other covenant, agreement, term or condition. No
covenant, agreement, term or condition of this Agreement to be performed or complied
with by either party, and no default by either party, shall be waived, altered or modified
except by a written instrument executed by the other party. No waiver of any Default or
Event of Default shall affect or alter this Agreement, but each and every covenant,
agreement, term and condition of this Agreement shall continue in full force and effect
with respect to any other then existing or subsequent Default. Owner's compliance with
any request or demand made by City shall not be deemed a waiver of Owner's right to
contest the validity of such request or demand.
29.4 Right to Enjoin Defaults.
In the event of Owner's Default or an Event of Default, City shall be entitled to
seek to enjoin the Default or Event of Default and shall have the right to invoke any
rights and remedies allowed at law or in equity or by statute or otherwise, except to the
extent City's remedies are expressly limited by the terms hereof. In the event of City's
Default or an Event of Default under this Agreement, Owner shall be entitled to seek to
enjoin the default and shall have the right to invoke any rights and remedies allowed at
law or in equity or by statute or otherwise, except to the extent Owner's remedies are
expressly limited by the terms hereof. Each right and remedy of City and Owner
provided for in this Agreement shall be cumulative and shall be in addition to every other
right or remedy provided for in this Agreement or now or hereafter existing at law or in
equity or by statute or otherwise, except to the extent City's remedies and Owner's
remedies are expressly limited by the terms hereof, and the exercise or beginning of the
exercise by City or Owner of any one or more of the rights or remedies provided for in
this Agreement or now or hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous or later exercise by City or Owner of any or all other
rights or remedies provided for in this Agreement or now or hereafter existing at law or in
equity or by statute or otherwise, except to the extent City's remedies and Owner's
remedies are expressly limited by the terms hereof.
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29.5 City's Default.
In the event of any default by City hereunder, not caused by City Excusable
Delays (as hereinafter defined) Owner shall give City written_ notice specifying such -
default and City agrees to promptly commence the curing of such default and to cure
such default within thirty (30) days after receipt of the aforesaid notice; provided,
however, that if such default cannot reasonably be cured within said thirty (30) day
period, then City shall cure any such default diligently and as quickly as reasonably
practicable under the circumstances and shall have a reasonable period of time within
which to cure such default so long as City is so proceeding. If City fails to cure any
default during the applicable curative period, Owner, at any time after the expiration of
such curative period, shall have the right to seek damages against City and/or to exercise
any other remedy provided in this Agreement or available to Owner at law or in equity.
As used herein, the term "City Excusable Delays" shall mean City's failure: to perform
any obligation of City hereunder by reason of one or more of the following causes, to-
wit, governmental restrictions, regulations or ordinances (other than those restrictions,
regulations or ordinances over which City, as a governmental entity, exercises control),
strikes, lockouts, acts of God,.- war, terrorism, riots, gross negligence or the willful
misconduct of Owner, or any other cause, similar or dissimilar to the foregoing and
whether or not now in the contemplation of the parties hereto, beyond the reasonable
control of City, other than the financial inability of City, provided that City takes
reasonable steps to so minimize the effect of any such circumstance, in which event the
required period for City's performance for any obligation hereunder shall be extended for
a period equal to the length of the delay caused by such Excusable Delays. City agrees to
make a good faith effort to notify Owner of any Excusable Delays affecting the
performance by City of its obligations under this Agreement and the estimated delay to
result therefrom.
30. Liens.
30.1 Creation of Liens.
(a) Owner shall not create, cause to be created, or suffer or permit to exist (1)
any lien, encumbrance or charge upon this Agreement, the Property (including, without
limitation, the City Easement Area), the HACMB Project, or the City Easement, or any
part thereof or appurtenance thereto, which is not removed within the time period
required pursuant to Section 30.2; (2) any lien, encumbrance or charge upon any assets
of, or funds appropriated to, City; or (3) any other matter or thing whereby the West
Avenue Bridge Project and or the City's interest in the Property (including, without
limitation, the City Easement), or any part thereof or appurtenance thereto, might be
materially impaired.
(b) City shall not create, cause to be created, or suffer or permit to exist (i)
any lien, encumbrance upon this Agreement, the City Easement Area, the West Avenue
Bridge Project, or any part thereof or appurtenance thereto, which is not removed within
the time period required pursuant to Section 30.2; (ii) any lien, encumbrance or charge
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upon any assets of, or funds appropriated to, Owner; or (iii) any other matter or thing
whereby Owner's interest in the Property, or the HACMB Project, or any part thereof or
appurtenant thereto, might be materially impaired.
30.2 Discharge of Liens. -
(a) If any mechanic's, laborer's, vendor's, materialman's or similar statutory
lien (including tax liens, provided the underlying tax is an obligation of Owner is filed
against the Property and/or the HACMB Project, or any part thereof, or if any public
improvement lien created, or caused or suffered to be created by Owner shall be filed
against any assets of, or funds appropriated to Owner, Owner shall, within thirty (30)
days after Owner receives notice of the film of such mechanic's, laborer's, vendor's,
Y g
materialman's or similar statutory lien or public improvement lien, cause it to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. However, Owner shall not be required to discharge any such
lien if Owner shall have (i) furnished City with, at Owner's option, a cash deposit, bond,
letter of credit from an institutional lender (in form reasonably satisfactory to City) or
other security (such as a personal guaranty or title company indemnity) reasonably
satisfactory to City, in an amount sufficient to pay the lien with interest and penalties; and
(ii) brought an appropriate proceeding to discharge such lien and is prosecuting such
proceeding with diligence and continuity; except that if, despite Owner's efforts to seek
discharge of the lien, City reasonably believes that a court judgment or order foreclosing
such lien is about to be entered or granted and so notifies Owner, Owner shall, within ten
(10) days of notice to such effect from City (but not later than three (3) business days
prior to the entry or granting of such judgment or order of foreclosure), cause such lien to
be discharged of record or City may thereafter discharge the lien and look to Owner for
reimbursement of its cost in doing so.
(b) Notwithstanding anything to the contrary contained in Section 30.2 (a), if
any mechanic's, laborer's, vendor's, materialman's or similar statutory lien (including tax
liens, provided the underlying tax is an obligation of Owner) is filed against the Property,
or any part thereof (including, without limitation, the City Easement Area), or the
HACMB Project, or the West Avenue Bridge Project, or City's interest in the Property
(including, without limitation, the City Easement) as a result of any action of City, its
officers, employees, representatives or agents, City shall, within thirty (30) days after
City receives notice of the filing of such mechanic's, laborer's, vendor's, materialman's or
similar statutory lien, cause it to be discharged of record by payment, deposit, bond, order
of a court of competent jurisdiction or otherwise. However, City shall not be required to
discharge any such lien if City shall have (i) furnished Owner with, at City's option, a
cash deposit, bond, letter of credit from an Institutional Lender (in form reasonably
satisfactory to Owner) or other security (such as a personal guaranty or title company
indemnity) reasonably satisfactory to Owner, in an amount sufficient to pay the lien with
interest and penalties and (ii) brought an appropriate proceeding to discharge such lien
and is prosecuting such proceeding with diligence and continuity; except that if, despite
City's efforts to seek discharge of the lien, Owner reasonably believes that a court
judgment or order foreclosing such lien is about to be entered or granted and so notifies
City, City shall, within ten (10) days of notice to such effect from Owner (but not later
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than three (3) business days prior to the entry or granting of such judgment or order of =- = _
foreclosure), cause such lien to be discharged of record or Owner may thereafter
discharge the lien and look to City for reimbursement of its cost in so doing.
30.3 No Authority to Contract in Name of City.
Nothing contained herein shall be deemed or construed to constitute the consent
or request of City, express or implied, by implication or otherwise, to any contractor, - -
subcontractor, laborer or materialman for the performance of any labor or the furnishing
of any materials for any specific improvement of, alteration to, or repair of, the HACMB
Project or any part thereof, nor as giving Owner any right, power or authority to contract
for, or permit the rendering of, any services or the furnishing of materials that would give
rise to the filing of any lien, mortgage or other encumbrance against the West Avenue
Bridge Project or the City Easement, or City's interest in the Property (including, without
limitation, the City Easement Area), or any part thereof, or against any assets of City.
Notice is hereby given, and Owner shall cause all construction agreements to provide,
that to the extent enforceable under Florida law, City shall not be liable for any work
performed or to be performed on the HACMB Project, or any part thereof, for Owner, or
for any materials furnished or to be furnished to the Project, or any part thereof, for any
of the foregoing, and no mechanic's, laborer's, vendor's, materialman's or other similar
statutory lien for such work or materials shall attach to or affect the West Avenue Bridge
Project, the City Easement, or City's interest in the Property (including, without
limitation, the City Easement Area), or any part thereof, or any assets of City.
31. Right To Perform The Other Party's Obligations.
(a) If an Event of Default shall occur, City may, but shall be under no
obligation to, perform the obligation of Owner the breach of which gave rise to such
Default, without waiving or releasing Owner from any of its obligations contained herein,
provided that City shall exercise such right only in the event of a bona fide emergency or
after five (5) business days' notice, and Owner hereby grants City access to Parcel C and
to the HACMB Project, as applicable, in order to perform any such obligation.
(b) If a default by City under this Agreement shall occur and be continuing
beyond any applicable grace period, Owner may, but shall be under no obligation to,
perform the obligations of City (other than those which are governmental as opposed to
proprietary obligations) the breach of which gave rise to such default, without waiving or
releasing City from any of its obligations contained herein, provided that Owner shall
exercise such right only in the event of a bona fide emergency or after five (5) business
days' notice to City.
31.2 Reimbursement for Amounts Paid Pursuant to this Section.
(a) Any amount paid by City in performing Owner's obligations, as provided
in this Section, including all costs and expenses incurred by City in connection therewith,
shall be reimbursed to City within thirty (30) days of City's demand, together with
interest on amounts actually paid by City, calculated at the maximum allowable rate
under Florida law, from the date of notice of any such payment by City to the date on
which payment of such amounts is received by City.
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(b) Any amount paid by Owner in performing City's obligations, as provided -
in this Section, including all costs and expenses incurred by Owner in connection
therewith, shall be reimbursed to Owner within thirty (30) days of Owner's demand,
together with interest on amounts actually paid by Owner, calculated at the maximum
allowable rate under Florida law, from the date of notice of any such payment by Owner
to the date on which payment of such amounts is received by Owner.
31.3 Waiver, Release and Assumption of Obligations.
(a) City's payment or performance pursuant to the provisions of this Section
shall not be, nor be deemed to constitute, City's assumption of Owner's obligations to pay
or perform any of Owner's past, present or future obligations hereunder.
(b) Owner's payment or performance pursuant to the provisions of this
Section shall not be, nor be deemed to constitute, Owner's assumption of City's
obligations to pay or perform any of City's past, present or future obligations hereunder.
32. Intentionally omitted.
33. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts,
labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes
therefore, riot, civil commotion, fire or other casualty, and other causes beyond the
reasonable control of the party obligated to perform, excluding the financial inability of
such party to perform and excluding delays resulting from appeals or rehearings
commenced by the Owner (any such causes or events to be referred to herein as a "Force
Majeure"), shall excuse the performance by such party for a period equal to any such
period of prevention, delay or stoppage.
34. Miscellaneous.
(a) Counterparts. To facilitate execution, the parties hereto agree that
this Agreement may be executed in counterparts as may be required and it shall not be
necessary that the signature of, or on behalf of, each party, or that the signatures of all
persons required . to bind any party, appear on each counterpart; it shall be sufficient that
the signature of, or on behalf of, each party, or that the signatures of the persons required
to bind any party, appear on one or more of such counterparts. All counterparts shall
collectively constitute a single Agreement.
(b) References. All references in the Agreement to the "Agreement"
shall hereafter mean and refer to the Development Agreement.
(c) Governing Law and Exclusive Venue.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Florida, both substantive and remedial, without regard to
principles of conflict of laws. The exclusive venue for any litigation arising out of this
Agreement shall be Miami Dade County, Florida, if in State court, and the U.S. District
Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS
AGREEMENT, CITY AND OWNER EXPRESSLY WAIVE ANY RIGHTS EITHER
-21-
PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION
RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. _
(d) Waiver, Modification, etc. No covenant, agreement, term or
condition of this Agreement shall be changed, modified _altered, waived or terminated
except by a written instrument of change, modification, alteration, waiver or termination
executed by City and Owner. No waiver of any Default or default shall affect or after
this Agreement, but each and every covenant, agreement, term and condition of this -
Agreement shall continue in full force and effect with respect to any other then existing
or subsequent Default or default thereof.
(e) Effect of Other Transactions. No mortgage, whether executed
simultaneously with this Agreement or otherwise, and whether or not consented to by
City, shall be deemed to modify this Agreement in any respect, and in the event of an
inconsistency or conflict between this Agreement and any such instrument, this
Agreement shall control.
(f) Invalidity of Certain Provisions. If any provision of this
Agreement or the application thereof to any Person or circumstances is, to any extent,
finally determined by a court of competent jurisdiction to be invalid and unenforceable,
the remainder of this Agreement, and the application of such provision to Persons or
circumstances other than those as to which it is held invalid and unenforceable, shall not
be affected thereby and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(g) Remedies Cumulative.
Each right and remedy of either party provided for in this Agreement shall be
cumulative and shall be in addition to every other right or remedy provided for in this
Agreement, or now or hereafter existing at law or in equity or by statute or otherwise
(except as otherwise expressly limited by the terms of this Agreement), and the exercise
or beginning of the exercise by a party of any one or more of the rights or remedies
provided for in this Agreement, or now or hereafter existing at law or in equity or by
statute or otherwise (except as otherwise expressly limited by the terms of this
Agreement), shall not preclude the simultaneous or later exercise by such party of any or
all other rights or remedies provided for in this Agreement or now or hereafter existing at
law or in equity or by statute or otherwise (except as otherwise expressly limited by the
terms of this Agreement).
(h) Performance at Each Party's Sole Cost and Expense.
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Unless otherwise expressly provided in this Agreement, when either party. -
exercises any of its rights, or renders or performs any of its obligations hereunder, such
party shall do so at its sole cost and expense.
(i) Time is of the Essence. -
Time is of the essence with respect to all matters in, and requirements of, this
Agreement as to both City and Owner including, without limitation, the times within
which City and Owner must commence and complete construction of, respectively, the
West Avenue Bridge Project and the HACMB Project.
(j) Successors and Assigns.
The agreements, terms, covenants and conditions herein shall be binding upon,
and inure to the benefit of, City and Owner, and, except as otherwise provided herein,
their respective successors and permitted assigns. There shall be no assignment by
Owner of its rights or obligations hereunder, or its interest in this Agreement, without the
prior consent of the Mayor and City Commission which consent, if given at all, shall be
at the City Commission's sole and reasonable discretion.
(k) Notice of Defaults.
Notwithstanding anything to the contrary set forth in this Agreement,
under no circumstances shall any . party to this Agreement lose any right or benefit
granted under this Agreement or suffer any harm as a result of the occurrence of any
Default or default of such party as to which Default or default such party has not received
notice thereof from the other party.
(1) Corporate Obligations.
It is expressly understood that this Agreement and obligations issued hereunder
are solely corporate obligations, and, that no personal liability will attach to, or is or shall
be incurred by, the incorporators, stockholders, officers, directors, elected or appointed
officials (including, without limitation, the Mayor and City Commission of the City and
the Chairman and Members of the HACMB) or employees, as such, of City or Owner, or
of any successor corporation, or any of them, under or by reason of the obligations,
covenants or agreements contained in this Agreement or implied therefrom; and, that any
and all such personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such incorporator,
stockholder, officer, director, elected or appointed officials (including, without limitation,
the Mayor and City Commission of the City and the Chairman and Members of the
HACMB) or employee, as such, or under or by reason of the obligations, covenants or
agreements contained in this Agreement or implied therefrom, are expressly waived and
released as a condition of, and as a consideration for, the execution of this Agreement.
(m) Nonliability of Officials and Employees.
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No member, official or employee of City shall - be personally liable to Owner, or - . _
any successor in interest, in the event of any default or breach by City or for any amount
or obligation which may become due to Owner or successor under the teems of this
Agreement; and, any and all such personal liability, either at common law or in equity or
by constitution or statute, of, and any and all such rights and claims against, every such
person, under or by reason of the obligations, covenants or agreements contained in this
Agreement or implied therefrom, are expressly waived and released as a condition of, and - -
as a consideration for, the execution of this Agreement.
No member, official or employee of Owner shall be personally liable to City, or
any successor in interest, in the event of any default or breach by Owner or for any
amount or obligation which may become due to City or successor under the terms of this
Agreement; and, any and all such personal liability, either at common law or in equity or
by constitution or statute, of, and any and all such rights and claims against, every such
person, under or by reason of the obligations, covenants or agreements contained in this
Agreement or implied therefrom, are expressly waived and released as a condition of, and
as a consideration for, the execution of this Agreement.
(n) Partnership Disclaimer.
Owner acknowledges, represents and confirms that it is an independent contractor
in the performance of all activities, functions, duties and obligations pursuant to this
Agreement.
The parties hereby acknowledge that it is not their intention to create between
themselves a partnership, joint venture, tenancy in common, joint tenancy, or co
ownership for the development by Owner of the HACMB Project, the development by
City of the West Avenue Bridge Project, or for any other purpose whatsoever.
Accordingly, notwithstanding any expressions or provisions contained herein, nothing in
this Agreement, or the other documents executed by the parties with respect to the
HACMB Project or the West Avenue Bridge Project, shall be construed or deemed to
create, or to express an intent to create, a partnership, joint venture, tenancy -in- common,
joint tenancy, or co- ownership of any kind or nature whatsoever between the parties
hereto. The provisions of this subsection (n) shall survive expiration of this Development
Agreement.
(o) No Third Party Rights.
Nothing in this Development Agreement, express or implied, shall confer upon
any person, other than the parties hereto and their respective successors and assigns, any
rights or remedies under or by reason of this Agreement.
(p) No Conflict of Interest.
Owner represents and warrants that, to the best of its actual knowledge, no
member, official or employee of the City has any direct or indirect financial interest in
this Agreement nor has participated in any decision relating to this Agreement that is
prohibited by law. Owner represents and warrants that, to the best of its knowledge, no
- 24 -
officer, agent, employee or representative of the City has received any payment or other
consideration for the making of this Agreement, directly or indirectly, from Owner.- -
Owner represents and warrants that it has not been paid or given, and will not pay or = .
give, any third person any money or other consideration for obtaining this Agreement,
other than normal costs of conducting business and costs of professional services such as_ -_ - - _ -
architects, engineers, and attorneys. Owner acknowledges that Owner is relying upon the - -- - - -- -
foregoing representations and warranties in entering into this Agreement and would not -
enter into this Agreement absent the same.
35. Entire Agreement. This Agreement, together with the documents
referenced herein, constitute the entire agreement and understanding among the parties
with respect to the subject matter hereof, and there are no other agreements,
representations or warranties other than as set forth herein. This Agreement may not be
changed, altered or modified except by an instrument in writing signed by the party
against whom enforcement of such change would be sought and .subject to the
requirements for the amendment of development agreements in the Act.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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EXECUTED as of the date first above written in several counters, each of which
shall be deemed an original, but all constituting only one agreement.
Signed, sealed and delivered CITY OF MIAMI BEACH,
in the presence of: a Florida municipal corporation /'
By: /41/ /, i� . � ✓ /
Name: ' ' i G
Attest: k:O44 fg
Robert Parcher, City Clerk
Signed, sealed and delivered WNER/HOUSING AUTHORITY OF
in the presence of: T ITY OF MIAMI B : ACH
By: �I
Name: Miguell Del a , pil Executive
Director
Attest !
By: ,. 1 �� r
HACMB General Counsel City of Miami Beach - City Attorney
Approved as to Form & Language Approved as to Form & Language
& for Execution & forExecution
v A. Boutsis A
iicreow
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I I
- _ k3 __ ls. - — l - _vrr
STATE OF FLORIDA ) _ 4 -
)SS:
COUNTY OF DADE }
The foregoing instrument was acknowledged before me this day of _ _ _.
2011 by Miguell Del Campillo as Contracting Officer and Executive Director of the
Housing Authority of the City of Miami Beach and o ! behalf of the A I ority. He /She is
personally known to me and who did (did not) take an ath.
At ■ A L
• TARY PUBLIC
OPMESA- k)-(1-40i)01
Typed or Printed Name of Notary
My Commission expires: " ,ao ‘ l
Serial No., if any: Q q S G
NOTARY PUBS. ;C•STATE OF FLORIDA
" Vanesa G. Naveros
1 = Commission # DD956367
OFFICIAL NOTARY SEAL Expires: FEB. 14, 2014
STATE OF FLORIDA ) BONDED THRU ATLANTIC BONDING CO., arc.
) SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this /3" day of >214
2011, by / 2, /1-j /1 - as Mayor of the City of Miami Beach, a
municipal corporation, on behalf of the City. He /She is personally known to me or has
produced as identification and who did (did not) take an oath.
i
• TARY PUBLIC
Ji fi om � 1-17q4 de/
Typed or Printed Name of Notary
My Commission expires:
Serial No., if any:
OFFICIAL NOTARY SEAL
\ �, \`�AM R ! N4 ,
* �epuary re
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SZ. te ; •►
• 0 832 ;*
A GB ••• 4i� t e: • Q'
STATE OF \ �QT
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•
EXB BIT "A”
PROPERTY SKETCH
[CITY TO ATTACH]
•
•
•
•
•
•
_ 28_
LEGAL DESCRIPTION
PARCEL "A"
Portion of Lot 11, Block 41, plat of BELLEVIEW SUBDIVISION, recorded in Plat Book 6 at Page 114,
Public Records of Miami —Dade County, Florida, together with portion of Lot 9, Block 17, plat of
SUBDIVISION OF THE WEST HALF OF BLOCKS 17, 40 AND 45, recorded in Plat Book 6 at Page 165,
Public Records of Miami —Dade County, Florida. Said portion of land being more particularly described
as follows:
Begin at the most northerly corner of said Lot 11, Block 41, Said point being the POINT OF
BEGINNING of the Tract of Land herein described; thence North 59° 44' 44" East, along the North
line of the above mention Lot 9, Block 17, for a distance of 19.33 feet; thence due South for a
distance of 72.62 feet to a point of tangency; thence along the arc of a curve concave to the
northwest, having a central angle of 52° 17' 19 "' and a radius of 25.00 feet for a distance of 22.82
feet; thence North 73° 05'29" West for a distance of 103.56 feet to the point of intersection with
the northwesterly line of the above mentioned Lot 11. Said point of intersection being 94.00 feet
southwesterly of the most northerly corner of said Lot 11; thence North 59° 44' 44" East, along the
northwesterly line of said Lot 11, for a distance of 94.00 feet to the POINT OF BEGINNING. Said lands
located in the City of Miami Beach, Florida and containing 4622.15 square feet more or less or
0.1060 acres more of less.
PARCEL "B"
•
Begin at the most northerly corner of Lot 9 Block 17, plat of SUBDIVISION OF THE WEST HALF OF
BLOCKS 17, 40 AND 45, recorded in Plat Book 6, at Page 165 Public Records of Miami —Dode County,
Florida. Said point being the POINT OF BEGINNING of the tract of and herein described; thence
North 59° 44' 44" East, along the North line of said Block 17 for a distance of 12.24 feet; thence
due South for a distance of 117.57 feet to o point of tangency; thence along the arc of a curve
concave to the northeast, hoving o central angle of 90 °00' 00" and a radius of 25.00 feet, for o
distance of 39.27 feet to a point of tangency with the north right —of —way line of 17 Street, as 17
Street is shown in the above mentioned plat of SUBDIVISION OF THE WEST HALF OF BLOCKS 17, 40
and 45; thence due west, along the north right —of —way line of 17 Street, for a distance of 10.00
feet to a point of tangency; thence along the arc of a curve concave to the southeast, having a
radius of 85.00 feet and a central angle of 30° 20'48" for a distance of 45.02 feet; thence
northwesterly, radial to the last described curve for a distance of 13.62 feet to a point. Said point
described in OFF REC. 16504, at page 3553 Public Records of Miami —Dade County, Florida; thence
North 73° 05'29" West for a distance of 41.66 feet; thence along the are of a curve whose radius at
this point bears North 52° 17'19" West, having a radius of 25.00 feet and a central angle of 52°
17'19" for o distance of 22.82 feet to a point of tangency; thence due north for a distance of 72.62
feet to the point of intersection with the northwesterly line of the above mentioned Lot 9, Block 17;
thence North 59° 44'44" East, along the northwesterly line of said lot 9 for a distance of 73.07 feet
to the POINT OF BEGINNING. Said lands located in the City of Miami Beach, Florida and containing
9001.65 square feet more or less or 0.2066 acres more or less.
PARCEL "C"
Lot 7, Block 17, Plat of SUBDIVISION OF WEST HALF OF BLOCKS 17, 40 AND 45, recorded in Plat
Book 6, at Page 165, Public Records of Miami —Dade County, Florida, Together with portions of Lots 8
and 9 of said Block 17 being more particularly described as follows:
Begin at the most northerly corner of said Lot 8, Block 17. Said point being the POINT OF BEGINNING
of the tract of land herein described; thence South 59° 44' 44" West, along the northerly line of said
Lot 8 for a distance of 67.76 feet; thence due South for a distance of 117.57 feet to point of
tangency; thence along the arc of a curve concave to the northeast, having a central angle of 90°
00' 00" and a radius of 25.00 feet for a distance of 39.27 feet to a point of tangency. Said point
being in the north right —of —way line of 17 Street, as shown in the above mentioned plat of
SUBDIVISION OF WEST HALF OF BLOCKS 17, 40 AND 45; thence due East along the north right— of—
way line of 17 Street for a distance of 65.00 feet to a point. Said point being the southeast corner
of the above mentioned Lot 8, Block 17; thence bearing N 9° 4'21"W along the East line of said Lot
8 for a distance of 175.10 feet to the POINT OF BEGINNING. Said lands located in the City of Miami
Beach, Florida and containing 26,953 square feet more of less or 0.6187 acres more or less.
I HEREBY CER11FY: that this SKETCH TO ACCOMPANY A LEGAL
DESCRIP110N is correct and meets the Minimum Technical Standards
LEGEND & ABBREVIATIONS: for Land Surveying in the State of Florida as set forth in Cttopter
472.027 (F.S.) and Chapter 61G17 -6 of the Florid° ' ' ist 9tive
Code.
CENTER LINE R RADIUS
ARC LENGTH R/W RIGHT —OF —WAY
C&G CURB AND GUTTER POB POINT OF BEGINNING . VAR 'A"
CENTRAL ANGLE .Y SURVEYOR
P.B. PLAT BOOK
P.O.B. POINT OF BEGINNING P. PAGE 11/19/2005 No. 291
DATE `TAT_ OF FLORIDA
F: \WORK \$ALL \GAD --DWG PROJECTS \SM \$M2006KK -17ST &WEST AVE.
CITY OF MIAMI REVISED NEIGHBORHOOD NO.9 CITY CENTER
BEACH APPROVED
•
VICINITY OF WEST AVENUE EC -01
PUBLIC WORKS 12/4/2008 AND DADE BOULEVARD
DEPARTMENT SHEET _t_ OF 2
NOTE: CD
1
Record Plats and best
information available was , 1— 0
used for this "SKETCH TO 1. 37.50' 37.50' o m ''-"'''
ACCOMPANY A LEGAL '
DESCRIPTION ". Bearings > /
refer to assumed due Q
north at the center line �
of West Avenue. This is T ��
� • y
not a survey.
,,,,,\.,'D /
2 0 PO ///
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12.24 ��0 $0 LL.!
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A� cV %, / �% �C O Q
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' �.� 4 j / y � PARCEL 04 W
-- 1 ,. // / / 2,
1X5' LOT 11, BLOCK 41 P.B.6, P 114 ° , j 4 I f `� /
EL w %
BLOCK 17 (P.B. 8, P. 165)
C PARCEL /
/ its5 , ° /,,,,„'l
A( R 17'19 �2 ° . � LOT 8 LOT 7
0 3.56. L =22.8
D� N73 . i, o-90; t
C, qC 1 r ,.:� 05, , / / R =25
STATE OF FLORIDA DEPARTM �� �F � 9 � G L= 39.27'
P ATION SECTION lqs - /
OF T OF ORT �? -� �
87512 2803 / � / ,
�3• /� 20 R
jam, ---_____. - - ' '• V// .. / /ii 80' 80' /141'
h� M • 10 WEST �_ 2' C.&G 1
PORTION DESCRIBED IN WARRATY A .,30 20'48' ' M In
DEED PLAZA PROPERTIES R =85'
LTD.(GRANTOR) HOUSING L =45.02"
AUTHORITY OF THE CITY OF MI • 1
BEACH (GRANTEE) OFF.REC. 16 '44
�
PAGE 3553 x s. 1 7th S T R ET
i
W
AR
� W Parent Tract 40,576.80 Sq.Ft. or 0.9315 AC.
°,�� Parcel "A" 4,622.15 Sq.Ft. or 0.1060 AC
Q Parcel "B" 9,001.65 Sq.Ft. or 0.2066 AC
I—
Parcel "C" 26,953 Sq.Ft. or 0.6187 AC.
1 (!) ,
W
SCALE: 1" = 60'
I F: \WORK \SALL \CAD -DWG\ PROJECTS \SM \SM2006KK __17ST&WEST AVE.
CITY OF MIAMI REVISED NEIGHBORHOOD NO.9 CITY CENTER
BEACH APPROVED • VI CI N I TY OF WEST AVENUE EC -02
• PUBLIC WORKS 12/4/2008
DEPARTMENT AND DADE BOULEVARD SHEET OF 2
LEGAL DESCRIPTION
PARCEL "A"
Portion of Lot 11, Block 41, plat of BELLEVIEW SUBDIVISION, recorded in Plot Book 6 at Page 114,
Public Records of Miami —Dade County, Florida, together with portion of Lot 9, Block 17, plat of
SUBDIVISION OF THE WEST HALF OF BLOCKS 17, 40 AND 45, recorded in Plat Book 6 at Page 165,
Public Records of Miami —Dade County, Florida. Said portion of land being more particularly described
as follows:
Begin at the most northerly corner of said Lot 11, Block 41, Said point being the POINT OF
BEGINNING of the Tract of Land herein described; thence North 59° 44' 44" East, along the North
line of the above mention Lot 9, Block 17, for a distance of 19.33 feet; thence due South for a
distance of 72.62 feet to a point of tangency; thence along the arc of a curve concave to the
northwest, having a central angle of 52° 17' 19" and a radius of 25.00 feet for a distance of 22.82
feet; thence North 73° 05'29" West for a distance of 103.56 feet to the point of intersection with
the northwesterly line of the above mentioned Lot 11. Said point of intersection being 94.00 feet
southwesterly of the most northerly corner of said Lot 11; thence North 59° 44' 44" East, along the
northwesterly line of said Lot 11, for a distance of 94.00 feet to the POINT OF BEGINNING. Said lands
located in the City of Miami Beach, Florida and containing 4622.15 square feet more or less or
0.1060 acres more of less.
PARCEL "B"
Begin at the most northerly corner of Lot 9 Block 17, plat of SUBDIVISION OF THE WEST HALF OF
BLOCKS 17, 40 AND 45, recorded in Plat Book 6, at Page 165 Public Records of Miami —Dade County,
Florida. Said point being the POINT OF BEGINNING of the tract of land herein described; thence
North 59° 44' 44" East, along the North line of said Block 17 for a distance of 12.24 feet; thence
due South for a distance of 117.57 feet to a point of tangency; thence along the arc of a curve
concove to the northeast, having a central angle of 90 °00' 00" and a radius of 25.00 feet, for a
distance of 39.27 feet to a point of tangency with the north right —of —way line of 17 Street, as 17th
Street is shown in the above mentioned plat of SUBDIVISION OF THE WEST HALF OF BLOCKS 17, 40
and 45; thence due west, along the north right —of —way line of 17 Street, for a distance of 10.00
feet to a point of tangency; thence along the arc of a curve concave to the southeast, having a
radius of 85.00 feet and a central angle of 30° 20'48" for a distance of 45.02 feet; thence
northwesterly, radial to the last described curve for a distance of 13.62 feet to a point. Said point
described in OFF REC. 16504, at page 3553 Public Records of Miami —Dade County, Florida; thence
North 73° 05'29" West for a distance of 41.66 feet; thence along the are of a curve whose radius at
this point bears North 52° 17'19" West, having a radius of 25.00 feet and o central angle of 52°
17'19" for a distance of 22.82 feet to a point of tangency; thence due north for a distance of 72.62
feet to the point of intersection with the northwesterly line of the above mentioned Lot 9, Block 17;
thence North 59° 44'44" East, along the northwesterly line of said lot 9 for a distance of 73.07 feet
to the POINT OF BEGINNING. Said lands located in the City of Miami Beach, Florida and containing
9001.65 square feet more or less or 0.2066 acres more or less.
PARCEL "C"
Lot 7, Block 17, Plat of SUBDIVISION OF WEST HALF OF BLOCKS 17, 40 AND 45, recorded in Plot
Book 6, at Page 165, Public Records of Miami —Dade County, Florida, Together with portions of Lots 8
and 9 of said Block 17 being more particularly described as follows:
Begin at the most northerly corner of said Lot 8, Block 17. Said point being the POINT OF BEGINNING
of the tract of land herein described; thence South 59° 44' 44" West, along the northerly line of said
Lot 8 for a distance of 67.76 feet; thence due South for a distance of 117.57 feet to point of
tangency; thence along the arc of a curve concave to the northeast, having a central angle of 90°
00' 00" and a radius of 25.00 feet for a distance of 39.27 feet to a point of tangency. Said point
being in the north right —of —way line of 17 Street, as shown in the above mentioned plat of
SUBDIVISION OF WEST HALF OF BLOCKS 17, 40 AND 45; thence due East along the north right— of—
way line of 17"' Street for a distance of 65.00 feet to a point. Said point being the southeast corner
of the above mentioned Lot 8, Block 17; thence bearing N 9° 4'21"W along the East line of said Lot
8 for a distance of 175.10 feet to the POINT OF BEGINNING. Said lands located in the City of Miami
Beach, Florida and containing 26,953 square feet more of less or 0.6187 acres more or less.
I HEREBY CERTIFY: that this SKETCH TO ACCOMPANY A LEGAL
DESCRIPTION is correct and meets the Minimum Technical Standards
LEGEND & ABBREVIATIONS: for Land Surveying In the State of Florida be set 'forth in Chapter
472.027 (F.S.) and Chapter 61G17 —E of the Flair •a dministrative
Code.
CENTER LINE R RADIUS
L ARC LENGTH R/W RIGHT —OF —WAY
C&G CURB AND GUTTER POB POINT OF BEGINNING J A
CENTRAL ANGLE P.B. PLAT BOOK CITY SURVEY
P.O.B. POINT OF BEGINNING P. PAGE 11/19/2008 F.VA, No. 2016
DATE STATE OF FLORIDA
F: \WORK \$ALL\CAD —DWG\ PROJE ; TS \SM \SM2006KK - -17ST &WEST AVE.
CITY OF MIAMI REVISED NEIGHBORHOOD NO.9 CITY CENTER
BEACH APPROVED
•
VICINITY OF WEST AVENUE EC -01
PUBLIC WORKS 12/4/2008 AND DADE BOULEVARD
DEPARTMENT SHEETL OF 2
.
. i I Q
NOTE: co
Record Plats and best
information available was U
� f— o
used for this "SKETCH TO 37.50' - 37.50' o m
ACCOMPANY A LEGAL I ' � /
DESCRIPTION ". Bearings > /
refer to assumed due \1
north at the center line w ��
of West Avenue. This is T �6
›o •
not a survey. �� /
2 S) , " "C)IC ..-
/ GP �/
/
/ GO QO
/N o;
/ 1
0.
N59 44'44 "E ..t1 1
/ 12.24' 54 AI' IP L�
LLJ o
/ ' , � LLJ N 1—
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j ,5 Q Z ;„ , _ :. ,,, \ EL -, 0
9h. 40 '. �% PARCEL C ' o QJ
� �r. j j �i N c Z csi /� a? f cV E
� LOT 11, BLOCK 41 Ail !� n' / r / 17 (PB6<
LOT 8 3.SB. L -2 28
°°=D X73' � � o -90r
RIGHT OF WAY MAP C ' 4 C� � .:r. O S 2 9, , �� , R =25'
OF A TRASNPORATION SECTION 1 22. //� / R /
� L =39.27
87512 2803 / �' �,
i
/'/ i 'I,. / /ice,,. `i _ 80' 60 . 20 R/W—
— —
P •ice r _— = 62.50' 5 WALK — —
a`g`1 / , M sUE WEST ---- 2' C.d&G f
PORTION DESCRIBED IN WARRATY ' 10'
DEED PLAZA PROPERTIES R=85'
20.48' "�
R =85'
LTD.(GRANTOR) HOUSING L= 45.02"
AUTHORITY OF THE CITY OF MI • _
BEACH (GRANTEE) OFF.REC. 16 •'.4 I '-7 '
■
-----......... PAGE 3553 .;1'0• 17th STREET
W
Z z AREA
of W Parent Tract 40,576.80 Sq.Ft. or 0.9315 AC.
,,,>,. Parcel "A" 4,622.15 Sq.Ft. or 0.1060 AC
< I Parcel "B" 9,001.65 Sq.Ft. or 0.2066 AC
/2' 1 Parcel "C" 26,953 Sq.Ft. or 0.6187 AC.
•
W
C ALE: 'I' = 60'
1 i F• \WORK\' ALL \CAD - -- DWG \ PROJECTS \ %A\ SM2006KK-- 1 AVE.
CITY OF MIAMI REVISED NEIGHBORHOOD NO.9 CITY CENTER
BEACH APPROVED VICINITY OF WEST AVENUE EC -02
PUBLIC WORKS 12/4/2008
DEPARTMENT AND DADE BOULEVARD SHEET _2_ OF 2
EXI-11BIT "B"
v3r _
PURCHASE AND SALE AGREEMENT
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